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CDRflBIGHT UEPOSm 



JOHN MARSHALL 

CONSTITUTIONALIST 



A DRAMA 

IN FIVE ACTS 




BY ^x-'^^' 
EDWARD jr WHITE 



Copyright, 1921, 

by 
Edward J. White. 

All Rights Reserved. 






'CI,D 5fifi!)l> ,{.' 



Oi 



i 



TO . 

HON. ALBERT J. BEVERIDGB, 

whose excellent biography of John Marshall 
inspired this drama, it is respectfully in- 
scribed, with grateful acknowledgment. 



PROLOGUE; 



Spirit of America. 



In Ancient Rome, two thousand years ago, 

A race of men existed who would not brool< a tyrant in their 

midst; 
Of noble mold, their lives were consecrate to Liberty and Law; 
Their love for Justice was a dominating force. 
And their Republic was the admiration of the world. 

Such men were Brutus, Cato, the elder Antony, Scaevola, Fabius, 
And a host of others who, with the unnoticed thousands of con- 
temporaries, unknown to history. 
Built up the grandeur that was Rome. 

The world saw not their like again 

Until the stirring period of our Revolution, 

When the Great Arbiter of the destinies of men. 

For the common good of man. 

In the Spirit of America, again brought forth a noble race. 

Like unto the sturdy Romans of the past. 

They were born, like giants, 'mid the vortex of our Revolution, 

These authors of our immortal Constitution. 

The trumpet sound of "Liberty or death" was then the vibrant 

impetus of manhood. 
From the rough resources of a wilderness, 
These patriots built and hedged around by law 
The mighty edifice to Liberty, 
The Nation formed by union of the States. 
A lasting monument to Freedom, 
Our own United States! 

The grateful Soul of America 

Should ever then respond, with reverence, 

For these patriots, whose nerve 

And wisdom serve us still; 

And the names of Washington and his illustrious generals. 

And of Marshall. Otis, Adams. Franklin, Henry, Jefferson, and 

The long list of other patriots, who founded our Republic, 

Should never be forgotten 

So long as Freedom and Justice are cherished on the earth! 

John Marshall followed Washington as a soldier of the Revolution; 

His dramatic struggle, in the formative period of our Government, 

For our Constitution, 

With his later, Titantic labor, 

Against the stupendous opposition of the States, 

To establish, upon a granitelike foundation, our fundamental law, 

Is a heritage, along with the blessings of a 

Beneficent Government by Law, emanating from the people, 

That posterity should revere 

So long as our free institutions shall endure 

And Liberty and Union are preserved in this fair land! 



ACT I. 

The Revolution. 

Scene I. 

THE CULPEPPER MINUTE MEN. 

(A body of 100 young frontiersmen, in Culpepper County, Va., 
gathered on a common, in May, 1775, to organize a military com- 
pany. The man who had called the meeting and who was to or- 
ganize them failed to appear, so it became necessary to select 
a leader.) 

Young Farmer : Boys, our captain has not arrived ; 
anyway, we must have a lieutenant. Who shall it bef 

(Enter John Marshall.) 

A VOICE : I say John Marshall. 

Another: I say so, too. 

Young Farmer: So say you all! 

Chorus of voices: Yes, we want John Marshall. 

Young Farmer: Marshall, will you be our lieuten- 
ant? 

John Marshall : I will act until you can find a bet- 
ter man. 

All: Hurrah, hurrah! Speech! 

John Marshall: My friends, all Virginians have 
read or been told of Patrick Henry's appeals to his 
countrymen, in the name of Freedom. As temperate 
and law-abiding a citizen as Col. Washington has as- 
sured us that "No man should scruple or hesitate a 
moment to use arms". These words have been car- 
ried over the countryside; your presence from the 



iiioiiiitaiii cabins and I'orost clearings, and the <;rim 
determination on your faces, show that you will 
make Henry's flaming words good with \'our lives if 
need be! I am glad tliat the news of C'oncord and 
Lexington has found us ready to meet the issue. 

My father has already enlisted and, for two years, 
has given me military instruction and practice. 

I come, my comrades, to meet you as fellow-soldiers 
who are likely to l)e called on to defend their country. 
Your own rights and liberties are at stake. Your 
brothers in New I']ngland have fought and beaten 
the British. We can do it, too! Now is the time to 
brighten our fire-arms and learn to use them in the 
field. Let our motto be "Liberty or death", and each 
one of our wilderness company should have his 
sweetheart, wife or mother work these words in white 
letters on the breast of his hunting shirt. Are you 
ready? 

(Applause.) 

Medley of voices: Yes, we are! Give us T^i])ei'ty or 
give us death! 

Marshall : Now, fall into line and I will give you 
some practice. 

(Shows them how to form line, and, taking position in 
front, and, bringing his own gun to his shoulder, instructs 
them in the manual of arms.) 

Marshall: Now watch me while I give the com- 
mands and go through the movements. 

(He then gives the commands slowly and distinctly, and 
illustrates the movements with his own rifle, so each man 
understood the orders and how to execute thoni. He then 
puts the company through the drill ) 



ACT I. . 

Scene II. 

NEAR IRON HILL, PA„ SEPTEMBER 9, 1777. 

(Washington's camp near Iron Hill, Pa. Seated around a 
small table, on casks, boxes and benches are Gen. Washington, 
Gen. Wayne, Gen. Maxwell, Gen. Lafayette, Gen. Green, Gen. Sul- 
livan, Col. Thomas Marshall. Capt. John Maishall standing.) 

Gen. Wayne: How can our liberty be achieved ex- 
cept by an army equipped, supplied and directed by a 
competent central government? We have seen our 
officers and men driven to madness and despair by the 
pusillanimous weakness of Congress. Our soldiers 
see their wounds and sufferings come to naught under 
the cursed sham, mockery and shallowness of State 
provincialism, which, under the doctrine of so-called 
"State sovereignty'', has been set up in the place of 
our National Government. I wish these Congressmen 
and Governors could be mustered into service. 

Gen. Washington : I have informed the committee 
of Congress that no army was ever worse supplied 
than ours; that our soldiers, the greater part of last 
campaign and the vrliole of this, have scarcely tasted 
any kind of vegetables and that we have been without 
salt and vinegar. I told them that soap was in great 
demand, and that a soldier's pay was so meager he 
could not purchase it, by reason of which his conse- 
quent dirtiness, added to the many putrid diseases 
incident to the army, and the lamentable mortality. 
It looks as if we could only depend upon the iiidom- 
inatable ''Spirit of America". 

Gen, Wayne: I have ordered olicers, as well as 
privates, to be instantly shot if thev are so far lost to 



all sliamt' as basely to (iiiit their posts without ordors, 
or shall skulk from danger or offer to retreat, before 
orders. 

Gen. Washington : Our men are bein«: most soivly 
tried and we must proceed with moderation, but of 
course, discipline must be maintained. 

Gen. Maxwell: One reason for the chaotic state of 
the army is the lack of trained officers and the ignor- 
ance of the soldiers in the simplest elements of drill oi- 
discipline. ]\lan>- oT the connnissioned officers know 
little more than the men, and we have no central 
authority. But what could you expect under the dis- 
organizing effect oi" local control and the inability to 
secure compulsory sendee, which the pompous author- 
ities of the new bom "sovereign and independent 
States" deny to the National Government. 

Gen. Lafayette : But the spirit of the men, for the 
most part, is wonderful and makes up for their lack 
of training. Baron von Steuben and my o'hcers are 
rapidly remedying the lack of training by instructing 
both privates and officers in the manual. 

Col. Marshall: I will wager my Virginia regiment 
of minute men are equal to four times their number 
of British, illfed and badly neglected as they are. 

Gen. Washington: (Looking at map) Howe is 
rapidly advancing and is among his friends in Penn- 
sylvania. T think it is essential to make an impres- 
sion on disaifected Philadel])hia, and we must march 
through this city on our way to confront the enemy. 
They think we are but small in numbers and wretched 
in equipment. A parade of eleven thousand men 
through this Tory-infested metropolis ought to give 
some heart to patriotic sympathizers and encourage 



Congress. Our troops should make the best appear- 
ance possible. Have the men all scour up their arms 
and wear sprigs of green in their headgear. In your 
orders for the march through the seat of Government, 
provide that, if any soldier shall dare to quit the 
ranks, he shall receive punishment at the first halting 
place. And not a woman is to be seen with the troops 
on their march through the city. In the meatime, we 
must harass the enemy as much as possible. (Studies 
map). Cornwallis' men should reach the vicinity of 
Iron Hill tomorrow. What are your suggestions, Gen- 
eral Wayne? 

Gen. Wayne: I would let General Maxwell select 
eight or nine picked officers and sergeants and a hun- 
dred rank and file from each brigade and throw them 
forward to Iron Hill. 

Gen. Washington : General Maxwell, select your 
officers for this adventure from this list (hands roll 
of officers to Gen. Maxwell). 

Gen. Maxwell: Colonel Marshall, I would like to 
have your son, Captain John Marshall, among this 
picked list of officers. 

(JoL. Marshall : I am sure he will be proud to serve 
under your command. 

Capt. Marshall: I am honored in the opportimity 
to do so. 

Gen. Washington : Let this body of select, light 
infantry be posted, during the night, on the road 
along which the British column will advance, and 
annoy the enemy and retard his progress as much as 
possible. 

(Looks at map.) 



It is iiiipossihlc to loiii^ci i)i(»t('('t l'lilla(U'li)liia 
williout a \ictoiy. (loiieial Howe is approaching in 
two cohinms. His left is now encamped at New Gar- 
den, while Lord Cornwallis, with the right, occupies 
the ground at ^lockessen meeting house. When these 
armies unite tomorrow, they will be but seven miles 
away. We must take our stand upon the Brandywine. 
Being easily forded, it is not an etfective barrier in a 
general engagement, but we must now hazard the 
issue or lose the capital to the enemy. 

(Enter an officer, who salutes and delivers a message 
to Geu. Washington, who reads it.) 

Gen. Washington : Colonel Bland of the cavalry 
gives information that, at two o'clock, the eolunui 
which is led by Lord Cornwallis, accompanied by Sir 
William Howe, in person, after a circuit of about sev- 
enteen miles, to mislead us, effected a juncture with 
the other forces and are now advancing in great force 
to make a formidable attack. A\'e must receive them, 
inferior in numbers and ill-equipped as we are. Gen- 
eral Sullivan, you and Gen. Stirling will advance 
this evening, up the Brand\^vine and front the column 
of the enemy now marching down the rivci'. The 
division commanded by General Wayne will remain 
at (^hadd's Ford, to keep Knyphausen in check. Gen- 
eral Maxwell's light infantry will cross Chadd's Ford 
and delay as long as possible the approach by occu- 
pation of the hills to the right of the stream along the 
road to Chadd's F'ord. General Green's division, 
with which T will remain, will take the central posi- 
tion in reserve between the right and left wings. T 
know thai you will all exhibit such a degree of order, 
Hrnmess and resolution as will preserve the discipline 



and bravery of your men. May success crown your 
efforts is my prayer. They have eighteen thousand 
men, and we have eleven thousand, but we will meet 
them all at the Brandywine on September 11th, and I 
have no doubt you and your men will give a good 
account of yourselves. 

ACT I. 
Scene III. 

BRANDYWINE, SEPTEMBER 11TH, 1777. 

(Gen. Wayne, Gen. Maxwell, Capt. John Marshall, and several 
minor officers and men before Chadd's Ford. Fighting in the 
distance.) 

Gen. Wayne: Captain Marshall, I am told you gave 
a good account of yourself at Iron Hill and in the 
skirmish with the enemy this morning. 

Capt. Marshall : We held them as long as wo could 
without needless sacrifice of men. 

Gen. Maxwell: Captain Marshall always gives a 
good account of himself. At Iron Hill, we were forced 
to retreat after losing forty killed and wounded, but 
we left many of the enemy on the Hill. Captain Mar- 
shall's men this morning killed a British captain, with 
thirty privates, and drove them out of the wood and 
took a field piece. 

(Exit Gen. Maxwell.) 

Capt. Maeshall: But large numbers of the enemy 
forced us to cross the river. General Wayne, my 
father's regiment is holding the advanced position, 
with General Sullivan at the right. With your per- 
mission, I would like to join him. Our Virginians will 
not be stampeded. 



Gf.x. AVayne: You may join your father. 

(Salutes. Exit Capt. Marshall.) 
(Enter Gen. Washington, in haste.) 

Gen. Washington: Cornwallis' men are battering 
the right wing. Many of Sullivan's men were stam- 
peded, but we turned them back. Colonel Marshall 
and his Virginia minute men held their ground. 

(Enter Col. Marshall, in haste.) 
(Salutes.) 

CoL. Marshall: My son is temporarily holding my 
command. My regiment retained its position with- 
out losing an inch of ground until both its flanks were 
turned. Its ammunition is now nearly expended, and 
one-half our officers and a third of our soldiers have 
been killed or wounded. I have lost two mounts. 
There is no panic in my command, but General Sul- 
livan agrees with me that we should now retreat. My 
men will do so orderly. 

Gen. Washington : By all means, do so. I congrat- 
ulate you and j^our superb Virginia command on your 
splendid day's work. 

(Salutes. Exit Col. Marshall.) 

(Enter an orderly, who confers with Gen. W^ayne.) 

Gen. Wayne: General Knjrphausen is now prepar- 
ing for an assault in dense masses to force a crossing 
at Chadd's Ford, and 1 will go to my command. 

Gen. Washington : Do not sacrifice your men. 
When General Sullivan's right wing retires, fall back 
as orderly as possible and inflict all the punishment 
you can. 

(Salutes. Exit Gen. Wayne.) 

(Enter Capt. Marshall. Salutes Gen. Washington.) 

Capt. Marshall: General, the right wing has 
retired in good order. We were out of ammunition. 



11 

(Ien. WASHiN(iT()N : You aiul yoiii- valliaiit father 
are entitled to my own and the histing gratitude of 
your countrymen. If all our officers and men were so 
well trained and possessed of your undaunted spirit, 
we would drive the British from our shores in a short 
time. 

Capt. Marshall: I suppose it is but natural in 
newly raised armies, from which undeserving officers 
have not been expelled, and where they are unused to 
danger, to find conduct that is not altogether uniform. 
Our regiments that have served in the preceeding 
campaigns maintained their ground with the firmness 
and intrepidity of veterans. With 3'our permission, 
I will now assume my command with Creneral Wayne. 

Gen. Washington : Do so, and tell him to protect 
his men, and fall back as soon as he sees the crossing 
of Chadd's Ford is inevitable. 

(Exit Capt. Marshall.) 

(Enter two officers bearing Gen. Lafayette.) 

Gen. WASHiN(iToN : My dear Marcjuis, I hope you 
are not sei'iously wounded. 

Gen. Lafayette : It was what a soldier may expect. 
It is a bagatelle. My men fought bravely. I hate to 
leave my command with only a broken leg, when so 
many brave comrades have given their lives. 

Gen. Washington : There will be another day, my 
dear General, and neither America nor France can 
afford to lose Lafayette (addressing officers). See 
that he gets surgical attention at once. I will be with 
you, to learn the extent of your injuries, as soon as 
possible. 

(Exit officers with Lafayette.) 
(Enter Gen. Wayne.) 



^ 12 

Gex. Wavni;: Well, my mcMi held the ford as long 
as they could, th"u retired. As provisioned by the 
State, many of theii- muskets were scarcely fit for 
service; they were of unequal caliber, and the cart- 
ridges of one would not fit another gun, and their fire 
could not do the execution that the enemy did. Think 
of an army, so })rovisioned, put in the field against a 
well-fed, well-paid and elliciently armed enemy! It is 
madness ! 

Gen. Washincton : It is a very dear lesson Con- 
gress is learning, and was to have been expected. Per- 
haps they will pay more attention to my pleading in 
the future. 

(Orderly hands Oen. Wayne a list.) 

(iKN. W'anxk: It is estimated the Britisli liaxc lost 
six hundred in killed and wounded, and if we had bei n 
properly pro^^sioned and armed, we could have driven 
them back. As it is, we liave ])robably lost a thousand 
men in killed and wounded and eleven i)ieces of ar- 
tillery. 1 would like to tell our Congress that they 
can never attain liberty by talk alone. 

Gen. Washington : We must wait and hope for a 
change in their policy and now fall back to Chester. 
An all-wise Providence mav stop the British if Con- 
gress, dominated by the weakness of the States, will 
not let us. They cannot advance through the mud and 
rain. General Wayne, we must save Philadelphia. 
Your men, with General Maxwell, will be detailed to 
retard their progress. General Smallwood will rein- 
force you. I know your men are tired and need rest. 
Beware of surprises 

Gen. Wayne: If all mv men were lilce General Max- 
well and Captain Marshall. T could hold them. 



13 



Gen. WA.sHiN(iToN : AA'e will try to seciiiT arms and 
ammunition, and engage them with a rested army at 
Gemiantown, and God grant that with this exi^crience 
the next engagenunt may jirove more successful than 
this has. 

(Exit Gen. Wayne.) 

Gi:n. Washington: (Praying) "God, grant to us 
strength and wisdom to meet the trials of this hour. 
Help us to save our Nation's Capital from the enemy 
and revive the drooping Spirit of America, and gi\'e 
its representatives vision to see that a nation cannot 
be defended against a permanent, well-supplied army 
by a voluntary, temporary force that is not properly 
fed or armed. Give to my brave, famished patriots 
strength and fortitude to protect their country from 
its foes, and grant us that the independence of Amer- 
ica shall not perish in its cradle." 

ACT I. 

Scene IV. 

VALLEY FORGE, DECEMBER 23, 1777. 

(A party of ten or twelve half-clad, cold and shivering soldiers 
before a hut. A camp fire burning near them.) 

FiEST SoLDiEK : I wish the well-fed American guests 
of Philadelphia, w^ho are banqueting and fawning over 
Howe's men, had to spend a few nights in our huts, 
without food, clothes or blankets. 

Second Soldier: Our last rations were consumed 
December second, and the *' fire-cake" is becoming 
very scarce. Our men are freezing and starving to 
death. With Americans here in this pitiful condition, 



Avhilc fight iiig- for t.luir country, think of the treachery 
tlirough which the cattle, sent to ns, were driven to 
over-supplied Phihidelphia, while our famishing patri- 
ots are left to die. 

(Enter Capt. John Marshall.) 

I say a people represented by such a Congress don 't 
deserve an arnn- to light for their liberties. If it were 
not for my love for (jeiicral Washington, 1 would say 
we ought to all go home and let these States' rights 
statesmen be made slaves and vassals of old King 
George. 

Capt. Matjshaij. : My comrades, we have not been 
given the proper backing by Congress, but all our rep- 
resentatives are not to blame. Our Government now 
is in but an experimental stage. Of course, we s.c 
that, to defend and protect the States, there must be 
a competent, central National Government, for, oth- 
erwise, there can be no uniformity of action. The 
trouble about the State sovereignty theory is that, 
when concerted action is necessary, they cannot agree, 
and when we need an army, all equally armed and 
provisioned, we find our troops armed with different 
kinds of guns and ammunition, or none at all, and we 
are forced to fight an enemy, armed, provisioned and 
garrisoned by one central authority, without conflict- 
ing methods. 

But we must not lose heart. We are fighting foi- 
ourselves and our loved ones, and thousands of loyal, 
liberty-loving Americans who will, in time, bring us 
succor. 

FiKST Soldier: What you say is right, ''Silver- 
heels", but, if we all stai've or freeze while thev are 



15 

debating over the rights of the States, liow can we 
save them! Self-preservation, to us, is a higher law 
than "States' rights". 

Third Soldier: Yes, I had rather be killed in bat- 
tle outright, than left to starve or freeze through the 
neglect of my countrymen. But why discuss it! We 
must be philosophers and stoics even if Congress will 
not help us. "Silverheels", tell us of your first en- 
gagement. 

Capt. Marshall: My first battle was that of Great 
Bridge, otherwise known as "Little Bunker Hill", the 
first fight of the Revolution in Virginia. The Cul- 
pepper minute men were mustered out September 1st, 
1775, in Major Clayton's old field, near the County 
seat. Patrick Henry sent an express, tilling of tho 
thereatening preparations of Governor Dunmore, a 
hundred miles to the south. We marched immedi- 
ately, and, in a few days, we were in Williamsburg. 
Our dress was that of the backwoodsmen and we were 
armed only with tlie weapons of the frontier. Our 
hair was mostly long and fell behind and was untied 
and unqueued. The people at first seemed afraid of 
us, but we demeaned ourselves as patriots and gentle- 
men, and they soon treated us with respect and kind- 
ness. Governor Dunmore and the Loyalists awaited 
our coming in a fort located in the Dismal Swamps^ 
accessible on either side by a long causeway. We 
made our camp within gunshot of this post in the mud 
and mire, at the south end of the causeway, and thrcAv 
up breastworks across it b^iween us and the fort. 
As we had no cannon, we could not attack the fort, so 
had to resort to strategy to force the Loyalists to 
attack. Mv father. Colonel Marshall, finallv resorted 



^16 

to a ruse U) i^i'l llk'iu to make an assault. He got his 
orderly to pretend lo desert and mislead the Governor 
as to the numbers opposing him. He went to the 
enemy and tokl them there were not more than three 
hundred of the insurgents. The Governor ordered the 
Loyalists to charge and take the Virginians, "or die 
in tlie att('mi)t". Thoy did not take us. Between day- 
break and sunrise, Oajitain Fordyce, leading his gren- 
adiers, six abreast, swept along the causeway toward 
our breastworks. 'I'he shots of the sentinels aroused 
the camp, and the ])iavest rushed to the works, fii'ing 
at will. The gallant Fordyce fell dead within a few 
steps of our breastworks. Every grenadier was killed 
or wounded wliile the Virginians did not lose a single 
man. Among the slain were four of the King's 
officers. This was the battle of Great Bridge, other- 
wise called "The Little Bunker Hill". 

Se(^oni) Soldier : You were with General AVa^me at 
Brandywine and Germantown, weren't you? 

Capt. Marshatj. : Yes. Well, we must be doing 
something or we'll freeze. Let's have a race or a 
game of quoits. 

First Soldier: All the best runners in the regiment 
have seen your pace, "Silverheels", but let us try the 
quoits. 

Capt. Marshall: I'll take nouglieity, Ko])]) and 
Smith. 

First Soldikr: And I'll take Slim and Fuzz and 
Shortie. 

Capt. Marshall: Where are the horse-shoes? 

Second Soldier: (Getting them) Here thev are. 

(Sides so selected take their positions around either 
peg, set eighteen or twenty feet apart, and commence to 
throw quoits, while soldiers gather to watch the game.) 



17 



ACT II. 
Courtship and Marriage. 

Scene I. 

YORKTOWN, 1780. 

(Home of Jacqueline Ambler, next door to headquarters of 
Col. Thomas Marshall. In small, scantily furnished room, Rebecca 
Ambler, an invalid, with her daughters Eliza, Nancy and Mary 
[14], are sewing.) 

Nancy Amblek : Mother, tell us of Mr. Jefferson's 
courtship f 

Eliza Ambler: Yes, please do. 

Maey Ambler: (Looking- up from her sewing-) Just 
think! How nearly the author of the Declaration of 
Independence came to being our father! "When, in 
the course of human events," did he offer to pledge 
to you, mother, his life, his fortune and his sacred 
honor? 

Rebecca Ambler : It is now but a pleasant recol- 
lection of twenty years ago. He was an ardent and 
faithful admirer, and I liked him very much. Mr. 
Jefferson was the son of Jane Randolph, who had 
married his father, Peter Jefferson, a planter. They 
lived near Charlottesville, Albemarle County, Vir- 
ginia. He had been taught Latin, Greek, French and 
mathematics by a private tutor, and, at sixteen, he 
entered William and Mary College. As a boy, he 
was tall, freckled and had red hair and hazel eyes. 
In Williamsburg:, he soon became one of the leaders 
in all social functions, and frequently took me to the 
balls given in the Apollo Room of the Raleigh Tav- 



^18 

cm. During liis first year in college, he seemed car- 
ried away with the gay, social life, hut, after a year 
or so, he became a most diligent student, and entered 
the law office of George Wythe as a student of law. 
He was smart, well-educated, and had an attractive 
personality. He danced well, played the violin and 
wrote pretty verses to me. I was the "('am])ana in 
die," "Belinda," "Adnileb" and the " H. II" of his 
letters. During the years '(il, '(52 and 'G.'>, he was 
quite devoted to me. He frequently otTered his liaiid 
in marriage, hut I did not love him and preferred yonr 
father. That, in short, is the story. 

Nancy Ambler: Well, with his exclusive States* 
rights views, I think yon did right. 

Eltza Ameij^k: No one, of course, can question iiis 
love of country, but T ]:)refer men who will fight for 
their country. 

Mary Amrler : Yes, I want a man who is ncit 
afraid to fight, and, if need be, die for his country ! 

Rebecca Ambler: You are rather young, my dear, 
to be thinking of the kind of man you want. 

Mary Ambler: Well, I'll know him when 1 see 
him, anyway. 

Eliza Ambler: 1 understand Captain John Mar- 
shall, of the Eleventh Virginia Kegiment of tlie line, 
has joined his father's headquarters. 

Nanci^ Ambler: The}^ say he is a very gallant of- 
ficer and disting-uished himself by valiant service at 
Brandymne and Germantown, Valley Forge and Mon- 
mouth. 

Eltza Ambler: Everybody speaks of him as a very 
paragon of manly virtues. I have seen his letters to 
his mother and brothers, full of filial affection. The 
eldest of fifteen children, he was devoted to his 



19 



younger brothers and sisters and they idoUzed him. 
But they say, however, he is an ungainly dresser, is 
slovenly and unkempt and has no pride at all about 
his appearance. Of course, I am anxious to meet 
him, and hope he goes to the ball. 

Mary Amblee : "They say" has no right to criti- 
cise such hero over things so trivial. You are giv- 
ing yourselves useless trouble. I have made up my 
mind to go to the ball, and will set my cap for him 
and ecUpse you all. 

Rebecca Ambler: That is a strange remark for a 
diffident, bashful girl of fourteen, Mary. You have 
not even been to dancing school and won't know. how 
to act at this fashionable ball. 

Mary Ambt.er : I know how to dance, just the same, 
and I am going to this ball and meet Captain John 
Marshall of the Eleventh Virginia Regiment of the 
line. 

ACT II. 

Scene IT. 

BALL AT YORKTOWN AND MEETING WITH MARY AMBLER. 

(Interior of ball room, where gaily dressed women and their 
military escorts are dancing the minuet. Mary Ambler and her 
sister Nancy are standing to one side, looking toward Capt. John 
Marshall, thin to gauntness, his ill-fitting garments hanging about 
him loosely, and he is timid to the point of embarrassment.) 

Nancy Ambler : There is your hero, Mary, now 
make your threat good. 

(Dance closes.) 

Eliza Ambler: (Approaching with Major Dick) 
Mary, did you meet your Adonis? Isn't he a specta- 
cle? I have lost all desire to become agreeable in his 



oyos siTU'c T Ih'Iu'UI his awkward figure, unpolished 
iiiaimers and total neglect of person. He is the talk 
of the ballroom. 

Maey Ambt.er: He has a wonderful eye; his dress 
doesn't matter, and I like him very mucli. 

(An officer approaches with Capt. Marshall, who intro- 
duces him to the three young ladies; the elder two ex- 
press chilly grei'tings, and then depart. Marshall shakes 
hands with Major Dick, who also leaves.) 

(Vi^\ Marsh.ali. : ^'(mr sisters, like their distiu- 
gTiished mother, are very popular and seem at home 
in a ballroom. Do you dance? 

Mary Amhlkr: I never have been to a ball before, 
but I will dance with you. I came here to meet you. 

(Music starts.) 

Capt. Marshall: Shall we try this dance:' You 
will find me an awkward partner. 

Mary Ambler: I came here to dance with you. 

(After two or three unsuccessful efforts to dance, they 
stop, amid confusion, to the merriment of the elder sis- 
ters.) 

Mary Ambler: Do tell me of (lermantowii. 

Capt. Marshai.l: After Brandy wine, the British 
occupied the Capital. Congress, frightened antl crest- 
fallen, fled to York. Even before these States' rights 
statesmen were driven from their cozy quarters, they 
concluded that the pi'ospect was gloomy and fore- 
boding. They wanted (Jeneral Washington to strike, 
regardless of the fact that he was without ammuni- 
tion, guns or su])plies. By some miracle, our dear 
Commander procured ])rovisions, and we got our 
munitions in serviceable condition for a surprise at- 
tack on GermantoMm. General Washington planned 
the attack admirablv. as the British liave since ad- 



21 

mitted. In the eveiiiii.i'' of a chill October day. (rcii- 
eral Washington gave the order to advance. Through- 
out the night we marched, and the three divisions at- 
tacked almost simultaneously in the early morning. 
I was with the left wing, under General Woodford, 
General Wayne being in command. All went well at 
first and we drove the British right from the ground, 
and charged, when they retreated, with loud cheers. 
A small detachment of the enemy, however, got pos- 
session of the Chew House and poured such a mur- 
derous hail of lead into our ranks, we had to fall 
back. I saw my comrades fall in heaps around me, 
while we vainly strove to take this well-defended 
stone house of the old Tory Judge. A thick fog arose 
and we could oidy see dim objects before us. The 
smoke from burning stacks of hay made the dark- 
ness thicker and our fir-e was directed by the flashes 
of' the enemy's guns. With tlie rattle of the mus- 
kets and roar of cannon, our boys kept up the cheer- 
ing, until retreat, which we had now learned so well 
how to do, became inevitable. The>' followed us 
about nine miles, but we finally stopped their pur- 
suit. After this, Congress madly urged General 
Washington to storm Philadelphia, but his good sense 
and aifection for his men led him to go into winter 
quarters, until he could procure provisions and sup- 
plies. 

Mary Ambler: Can't you have tea with me to-mor- 
row at six? I know mother would love to have you. 

Capt. Marshall: I will be delighted to meet your 
mother. I saw Major Dick talking to you, do you 
like him? 

Mary Ambler: Yes, very much, but he is almost as 
old as mv father. Mv father calls me "Pollv. " 



r.M'T. ]\rAK8iiA(j.: Tlie name suits you, not bocause 
you are a parrot, but a sweet, radiant, dimpled littlo 
woman. I wish I could call you "Polly." 

Maey Ambler: Not before people, but you may 
when we are alone. Here come my sisters. 

(Nancy and Eliza Ambler approach.) 

Be sure and come to tea tomorrow evening. 

Capt. Mabshau. : If I como, will you give nic one 
of your ringlets to remember you by? 

Mary Ambler: Well, perhaps. We'll see when 
you come. Will you tell me of your other battles? 

Capt. Marshall: Yes, and read poetry to you. 

Mary Amrler: Until to-mori'ow, then, (rood night. 

(Capt. Marshall kisses her hand and takes leave of her.) 
(Two officers watch them part.) 

First Officer: Captain Marshall makes love just 
like he fights. 

Second Officer: If he wants her, he would climb 
an Allegheny of skulls and SAvim an Atlantic of blood 
to have her. 

ACT II. 
Scene III. 

MARRIAGE AT JOHN AMBLER'S HOME IN VIRGINIA. 
JANUARY 3, 1783. 

(A spacious room, in which are many ladies and gentlemen, 
including John Ambler, Jacqueline Ambler, Rebecca Ambler, Mrs. 
Covington, Col. Thomas Marshall, Mrs. Thos. Marshall, several 
brothers and sisters of Capt. John Marshall, Mary Ambler and 
Capt. John Marshall, all seated around an open fire.) 

Col. Thos. Marshall: My son, have you secured 
your nest for your little bird? 

Capt. Marshall: Yes, father; we have a fine, little, 
two-room cottage in Richmond. 



Col. Thos. Marshall: Have you a l)aiii ? J want 
to give you a pair of horses if you are fixed to take 
care of them. 

Maey Amblee: We are in a receiving mood today. 

John Amblee : So you are to enter the legal pro- 
fession in Richmond, Capt. Marshall? It is a good 
Bar. 

l*APT. Maeshall: Yes, Randolph, Wickham, Wythe, 
Innes, Ronald, Campbell and Call have made the Bar 
of the Old Dominion historic, and, among such law- 
yers, a young man from the backwoods will, no doubt, 
have a struggle for a part of the legal business, 

Maey Amblee : Never fear but what we will make 
a success. 

Capt. Marshall: With such a partner for life, I 
cannot fail. 

(Negro servant passes wine and glasses.) 

John Amblee : I propose the toast : To the success 
of this life partnership; may God bless their union 
and long life, happiness and prosperity be its por- 
tion. 

(All stand and drink.) 

(Marriage ceremony is performed, under Episcopal rites. 
Capt. Marshall kisses the bride, and, after him, Col. Thos. 
Marshall, John Ambler and all the male guests do the 
same.) 



# 



ACT. III. 
Virginia Constitutional Convention, June 2nd 1788. 

Scene I. 

ANTI-CONSTITUTIONAL ARGUMENT OF PATRICK HENRY. 

(The Virginia Constitutional Convention was one of the most 
notable, parliamentary contests the world has ever witnessed. It 
consisted of 170 members; was held in the "New Academy" at 
Richmond. About a fourth of the members had been soldiers of 
the Revolution, and to these were added statesmen, jurists, law- 
yers, doctors, preachers, planters, merchants and Indian fighters, 
Edmund Pendleton was chosen President of the Convention, and, 
prominent among the members were Marshall, Henry, Wythe, 
Blair, Covington. Innes, Randolph, Macon, Madison. Lee, Fifer, 
Grayson, Bland, Harrison, Nicholson, Monroe. Meeting is in 
progress.) 

Patrick Henrv: Mr. President: 

Chairman Pendleton : The Chaii' recoo'iiizes Mr. 
Henry. 

Patrick Henry: What are the reasons for this 
chang-e of Government? A year ag'o, the ])iihic mind 
was at perfect repose. Now it is uneasy and dis- 
quieted. A wrono- step now, and onr Repubic may 
be lost. The Constitutionahsts propose a great, con- 
solidated Cilovernment. What right have tht' train- 
ers of the Constitution to say, *'"\Ve, the people," in- 
stead of *'We, the States?" Why tliis fnndamental 
change? Even from the illustrious man who saved 
us by his valor, I wonld have a reason for this con- 
duct. The Constitution makers have no anthority ex- 
cept to amend the old system under which all were 
satisfied. "We, the people," instead of ''We, the 
States," is an alarming transition, a revolution as 
radical as that which separates us from Great Brit- 



25 

iiiii. Sovereignty of the States, rights of conscit'iice, 
trial by jury, liberty of the press, all of these are pre- 
tensions of human rights and privileges, which are 
imperilled, if not lost, by the change. The new Gov- 
ernment may prevent licentiousness, but it ^\'ill oppress 
and ruin the people. It is clear when it speaks of 
sedition, but fatally vague when it speaks of py'ivil- 
eges. Who Mill defend us from such executions as 
we have seen in our State, by bill of attainder, in the 
case of Josiah Philips? TV^iere are the dangers the 
Constitutionalists conjure up under the Confeder- 
acy? It was the despised Confederacy that carried 
us through the war! Think well before you part 
with it! Dangers under the Confederacy are wholly 
imaginary; if any arise, I depend upon the Ameri- 
can spirit to defend us. 

The method of amendment provided in the Consti- 
tution is a mockery. It shuts the door on amend- 
ment. A contemptible minority can preveiit the good 
of the majority. A standing army will execute the 
execrable commands of tyranny. And who will pun- 
ish them? Will your macebearer be any match for 
a disciplined regiment? It will convert our country 
into a great and mighty empire. The Constitution's 
so-called checks and balances are mere rope-walking, 
chain-rattling, ridiculous contrivances. 

Who knows the dangers this new system may pro- 
duce? The Government will be out of sight of the 
common people. This proposed Government is not 
a Virginian, but an American,- Government. 

m the Chief Executive, we mil have a great and 
mighty President, possessing the powers of a king. 



to T)o snpportod in extravagant inagiii licence. What 
may happen to the common people with their mas- 
ters in Philadel])]iia or New York? 

The friends of the Constitution talk about its 
beauty, but, to me, it has an awful squinting:, and it 
squints toward monarchy. 

The President, your American Chief, cm\ make 
himself al)soUite. If ever he violates the law, he 
will come at the head of his army to carry every- 
thing before him, or he will give bail, or do what 
his Chief Justice may order him. But will he sub- 
mit to punishment ? 

Rather he will make one liold push for th(* Ameri- 
can throne. 

We shall have a king: tlie army will salute him, 
monarch; your militia will leave you and assist in 
making him king, and fight against you. It would 
be infinitely better to have a Government like (Ireat 
Britain, with Kings, Lords and Commons, than a 
Grovernment so replete with such insupportable evils. 

Pennsylvania has been tricked into a ratification. 
If other States that have adopted it have not been 
tricked, they were hurried to speedy and inconsider- 
ate action. 

At best, a Government is but a necessary evil. I 
can never believe that it is too late to save all that 
is precious. The imaginary evils of the Confeder- 
acy are conjured up to intimidate the people, but 
fear is the passion of slaves. 

The middle and lower classes of American people 
have not the illuminated ideas to see the latent dan- 
gers in the Confederacv. It is onh' through the illu- 



minated imaginations and microscopic eyes of mod- 
ern statesmen that such defects can be seen where 
none exist. 

Can they afford to leave Virginia out of any Union 
they may form! When I call this the most mighty 
State in the Union, do I not speak the truth? Does 
not Virginia surpass any State"? What danger is 
there that Virginia will be left out of the Union if 
we reject the Constitution? You may depend upon it, 
the other States ^\'ill be glad to have her on her own 
terms. 

"We, the people," were words used to rec(nnmend 
this damnable document to the masses, to those who 
may be likened to a herd, and, l)y the operation of 
this blessed system, are to l^e transformed from re- 
spectable, independent citizens to abject, dependent 
subjects or slaves. 

If this Constitution shall be adopted, the Northern 
States will control the Senate, and take from the 
Southern States the use of the Mississippi River, as 
a commercial outlet. Mr. Jefferson has counselled 
Virginia to reject this proposed Government. 

The Constitution, if adopted, will destroy the State 
Governments, like an ambuscade. It will swallow 
the liberties of the ])eople without warning. Under 
the Constitution, the acts of Congress may be con- 
cealed a century from the public. 

The National Government would do what it liked 
with Virginia, but when the deprivation of our lib- 
erty was attempted, what did the genius of Virginia 
tell us! "Sell all and purchase liberty!" Republi- 
can maxims and the genius of Virginia landed you 
safe on the shores of Freedom. 



T look upon that papei" as the most fatal plan that 
could possibly be contrived to enslave a free people ! 

(Applause from Anti-Constitutionalists.) 

ACT III. 

Scene. 11. 

CONSTITUTIONAL ARGUMENT OF JOHN MARSHALL. 
(Hon. (ieorge Wythe occupied the Chair.) 

George AVvTfiE: (Uses g'avel to restore order) 
What is the jjleasure of the Convention? 

John Marshall: Mr. Chairman. 

George Wythe : The Chair recognizes Mr, John 
Marshall, of Richmond. 

John Marshall: The question before the Conven- 
tion is a most momentous one: whether our coun- 
try shall decide for a democracy or a despotism! 

I am sure the f ramers and supporters of the Con- 
stitution intend the establishment and security of the 
former. They are firm fr-iends of the liberty and the 
rights of mankind we have heard so much extolled. 
That is why they are for the Constitution. We, sir» 
idolize democracy. The Constitution is the surest 
means of protecting liberty. The opposition has 
seen tit to jiraise a (pialified monarchy. Wc prefer 
this system to any monarchy, for it provides for a 
well-regulated democracy. 

I agree with Mr. Henry that maxims should be ob- 
served; they ar(^ especially essential to a democracy. 
But what are the inaxims of democracy? A strict 
observance of justice and public faith, and a steady 
adherence to virtue! These, sir, are the principles 
of a good Government. 



29 

No mischief, no mist'ortuiie ought to (U'ter us from 
a strict observance of justice and pubhc faith. Would 
to heaven that these principles had been observed 
under the present Confederation! 

Can Virginians, themselves, boast that our own* 
Government is based on Justice? Can we pretend 
to the enjojnnent of political freedom or security, 
Avhon we are told that a man has been, by an Act of 
Assembly, struck out of existence without a trial by 
jury, without examination, without being confronted 
with his accusers and witnesses, without the benefits 
of the law of the land? Where is our safety when 
we are told that this act was justifia1)le because the 
person was not a Socrates? Shall it be a maxim that 
a man shall be deprived of his life without the benefit 
of the law? 

How can we retain the navigation of the Missis- 
sippi ? 

Ry retaining that weak Government that has hith- 
erto ke])t it fi'om us? No, but by a Government with 
the power of retaining it, such a Government as that 
proposed by the Constitution. 

Mr. Henry's one argument that amendments could 
not be had after adoption proved that they could not 
be had before. 

Tn all the States, and particularly in Virginia, there 
are many who are decided enemies of the Union. 
These are inspired by local interests, their object be- 
ing disunion. They will not propose amendments 
that all can agree upon. 

\Yhen the Federal Government met, we had no 
idea then of any particular system. The formation 
of the most perfect plan was our object and wish. 
It was imagined that the States would, witli pleas- 



s 



Tire, accept that Convciitioii's woi'k. But consider the 
violence of opinions, the prejudices and aniniosiiies 
which have been since imbibed, and how greatly they 
operate against nuitnal concessions. 

Can the people, themselves, make treaties, enact- 
laws or administer the (iovernment? Of ccnirs-. they 
cannot. They must do such things through agents, 
and how can these agents act for the people if they 
are not given power to do so t 

That their agents may abuse power is no ar'>u- 
ment against giving it, for the i;owei- of doing good 
is inseparable fiom that of doing some i vil. If ]io ,ver 
cannot be given for fear it may be misused, you c:in 
have no Government. 

Happy the country which can avail itself of the 
misfortunes of others without fatal experience. There 
is no analogy between the British Goverimient and 
the Colonies, and the relations between Congress and 
the States. We were not represented in Parliament; 
here, under the Constitution, we are represented. 

What are the objects of a National Government? 
To protect the United States and promote the gen- 
eral welfare. Protection in time of war is one of 
its principal objects. We have seen that the States 
could not do this. The States cannot protect them- 
selves and promote the general welfare. Expei'ience 
has taught us that. 

By the National Government only can these things 
be done. Shall we refuse to give it power to do 
them? liOok at the great volume of human nature. 
It Mill tell you that a defenseless country cannot be 
secure. The powers of Europe are jealous of us. It is 
our interest to watch their conduct and guard against 
them. They must be pleased mth our disunion. If 



31 

wo invite them, l)y our weakness, to attack us, will 
they not do it f If we add debility to our present 
situation, a partition of America may take place. 

Were those who are now the friends of the Con- 
stitution less active in the defense of Liberty, on that 
trying occasion, than those who oppose it ? 

It is not true that the Confederation carried us 
tlirough the Revolution. Had not the enthusiasm of 
Liberty inspired us with unanimity, that system would 
never have carried us through it. The war would 
have been won much sooner had that Government 
been possessed of due energy. The weakness of the 
Confederation and the conduct of the States iiro- 
longed the war. I'^nited, we are strong; divided, we 
fall! What good would it do for Congress to merelv 
remonstrate with tlie States? Under the Constitu- 
tion, the Congress will be elected by the same voters 
who elect the State Legislatures. 

The Confederation takes away the inducements to 
industry by rendering property insecure and unpro- 
tected. The Constitution, on the contrary, will pro- 
mote and encourage industiy. 

Mr. Henry says there are no effective checks in 
the Constitution. What has become of his enthusi- 
astic eulogium of the American s])irit? There is 
the real check and control. When we consult the com- 
mon good, we consult our own. 

Is not liberty safe with us, where the people hold 
all powers in their own hands, and delegate them 
cautiously, for short periocls, to their servants, who 
are accountable for the smallest mal-administration? 
We are threatened mth the loss of our liberties by 
the possible abuse of powers, notwithstanding the 
maxim that those who gave may take. Tt is the peo- 



oo 



])!(' wlio "ive power, and tliey can take it back. AVhat 
sliall restrain them? They are the masters \vho give 
it, and of whom their servants hohl it! On this Gov- 
ernment, thus (U-])endin,ii- on ourselves for its exis- 
tence, T will rest my safety. 

The confederacies of ancient and modern times 
warn us to shun their calamities and place in our 
Government tlie necessary powers, the want of whicli 
destroyed them. 

TTow vain and fanciful the argument that National 
Jud<»'es would secure officers of the National Govern- 
ment from merited punishment. The National Courts 
would not supplant the State tribunals, but they 
would have concurrent jurisdiction with the Federal 
courts in those cases wher(Mn the latter have coo-niz- 
ance. 

If CongTess were to pass a law not warranted by 
any of its powers, it would be considered by the Na- 
tional Judges as an infringement of the Constitutioii 
which they are to guard. 

What security have you for justice! The independ- 
ence of your judiciary, the greatest safeguard that 
any Government can supply! 

Will our most virtuous and able citiiiens wantonly 
attempt to destroy the liberty of tiie people ? On the 
contrary, the virtue and talents of the members of 
the general Government will tend to the security, in- 
stead of the destruction, of our hberty. 

The Constitution im])ai-ts not what system we 
have, unless it have the power of protecting us in 
time of war. 

The Constitution, as it stands, fills the great objects 
which we all desire: T'nion, saf(>ty against foreign 



enemies, and protection against factions and p-rtrty 
strife — against what has been the destrnction of all 
Republics. 

These are the reasons, sir, why I am for the Con- 
stitution. 

(Long ard continued applause, and congratulations from 
the Constitutionalists.) 

(Chairman restores order.) 

Chairman George Wythe: What is the further 
pleasure of the House? 

Mr. Madison: I move you, Mr. Chairman, that a 
vote do now be taken upon the question: Shall the 
Commonwealth of Virginia ratify the Cnstitution ? 

A VOICE : I second the motion. 

The Chair: Gentlemen, you have heard the motion 
that the convention proceed at once to a vote upcni 
the question whether or not this Commonwealth shall 
ratify the Constitution. Are yon ready for the ques- 
tion ? 

(Constitutionalists shout, "question"; Anti-Constitutional- 
ists, "no"! ) 

The Chair : The Chair rules that the convention 
has decided to proceed to a vote upon this all import- 
ant question. The Secretary w\\\ proceed to call the 
list of delegates and enter their votes "for" or 
"against" ratification. Gentlemen, please indicate 
your vote when your name is called. 

(Secretary proceeds to call list and enter vote, after 
which it is totaled up. He confers with Chairman.) 

The Chair: Gentlemen, by your vote, you have de- 
cided 88 for and 80 against, that the Commonwealth 
of Virginia ratifies the Constitution of the United 
States ! 

(Long and continued applause; and Marshall is carried 
out on shoulders of his friends. Constitutionalists retire.) 



34 

Mason: p]very Anti-Constitutionalist here should 
urge upon his constituents to resist to the end this 
high-handed effort to overthrow the sovereign rights 
of the States. 

Patrick Henry: My friends, I did my best against 
the Constitution, but I did it in the proper place. I 
will never assume the role of defying a Government 
established by the majority of my fellow-citizens. The 
Constitution has been finally adopted, and I advise 
you all, as true and faithful Republicans, that you 
had better go home, and we will all support this Con- 
stitution, until we can amend it, consistent ^vith the 
legitimate powers of the States. 
(They all retire.) 



35 



ACT IV. 
Envoy to France, 1797. 
Scene I. 

HOUSE OF TALLEYRAND, USED AS OFFICE, FOREIGN AF- 
FAIRS, OF FRENCH DIRECTORY, NOVEMBER, 1797. 

(John Marshall, Charles Cotesworth Pinckney and Ellridge 
Gerry, America's Ambassadors to France, are seated in an ante- 
room.) 

Me. Gerry : Now, Mr. PinckiK\y, in this loiig-souglit 
interview with Monsieur Talleyrand, do be moderate. 
You must forget the seeming aifronts that have been 
offered you, and wo must meet him in a conciliatory 
mood, in order to accomplish anything for our coun- 
try. Think of the help France gave us in the Revolu- 
tion. We must be forgiving. 

John Marshall: Beaumarchais, Lafayette and 
other liberty-loving Frenchmen gave us such assist- 
ance in our war for independence, during the mon- 
archy, that we can never repay the debt of gratitude 
we owe, even if we returned to Beaumarchais the for- 
tune he spent for us, which we have not done, but the 
needed services of these liberty-loving Frenchmen, 
during the monarchy, that finally, to cripple Grreat 
Britain, also espoused our cause, gives no warrant to 
the present Directory to confiscate our ships and prop- 
erty, imprison and abuse our seamen, deny our rights 
upon the high seas, and finally insult our Minister! 

Mr. Pinckney: We have the undoubted evidence 
that the French Government has actually joined in the 
piratical warfare by the French privateers upon 



Amorican commerce, i-y this course, the JHrectory 
liopes to force the I'nited States into taking the armed 
side of France against (heat Britain. In the past year 
and a half, more than three hundred and forty Amer- 
ican vessels have been taken by French privateers, 
over fifty-five million dollars' worth of American 
property has been destroyed or confiscated under 
decrees of the French Directory, and they have beaten 
and imprisoned our seamen and tortured Captain 
Walker, of the ship "Cincinnatus", by thumbscrews 
for four hours. Munroe, after his recall by President 
Washington, circulated the report that I was an 
''aristocrat", and the Directorv^ have not only refused 
to receive me, before your ari'ival, but the Paris police 
threatened to arrest me, and T was finally ordered out 
of the territory of the Republic. 

John AIarshalj. : We should be willing to correct 
any errors and redress any wrongs committed against 
the French Government, but we should insist upon an 
equal measure of justice from France and every other 
nation, and this course alone is consistent with our 
national honor. 

Mr. Gerry : T am for compliance and condescension 
and the French Directory deny they ever knew of any 
of these outrages to our commerce. 

Mr. Pinckney: Since the coup d'etat of September 
fourth, it is generally understood that Talleyrand 
exerts a strong influence over the Directory and es- 
pecially over Bonaparte, and, I am told, he thinks the 
United States merits no more consideration than 
Genoa or Geneva. 

An Attendant: The Minister of Foreign Affairs, 
Monsieur Talleyrand, told me to advise you that he is 



37 

detained for a few moments in a conference with the 
Ambassador of Portugal. He will see you in five or 
ten minutes. 

(Retires.) 

John Marshall: Mr. Pinckney, as you are the only 
one of us who speaks French, you better carry on the 
negotiations, and, as the subjects develop, we can 
express ourselves. 

Me. Gerry: I knew Talleyrand when he was in 
America. He speaks English, 

Attendant: The Minister of Foreign AiTairs 
requests that you step this way. 

(They follow him to the room used by Talleyrand as 
an office. As they enter, he arises, — tall, slender, sallow, 
with slumbrous eyes, advancing with a shambling limp to 
meet them. He eyes them keenly.) 

M. Talleyrand: Have just boon going over the 
Franco-American affairs report with the Directory. I 
want you to accept cards of hospitality and let me be 
of any service I can, whether we reach an agreement 
over our differences or not. 

Mr. Pinckney: We have already permitted much 
time to pass, and certainly cannot be charged with 
precipitation. The existing state of things may be 
desirable to France, but it is ruinous to the United 
States and cannot be allowed to continue indefinitely. 

Mr. Gerry: But, my dear Minister, we will await 
your pleasure and are detenuined to preserve the 
status quo and to act with imanimity. 

M. Talleyrand: The Directory are exceedingly irri- 
tated at Mr. Adams' speech before Congress and his 
grave reflections against the integrity of the motives 
of the officers of the French Government. They should 
be softened. 



IMk. MAHsiiAi.L: In what way i? 

M. Taixeyrand:. (Jentlcmoii, we must have a formal 
statement from you, in writing, that the speech of 
our citizen, President Barroa, was not offensive to 
America; you must affirm that the decree of the Direc- 
tory, which your President has denounced, was not 
contrary to the treaty of 1778, that lie had no refer- 
ence to France when he spoke of the depredations to 
American trade by privateers. 

If this is done, the Directory are inclined to renew 
their old-time relations with the United States, and 1 
would use my influence to bring about a new treaty 
which would place France on the same footing with 
England, but, before this is attempted, your country 
must liquidate all the claims of your citizens for losses 
of ships and property taken on the seas, and there 
must be a secret article providing for a loan from the 
United States to France. 

I will not disguise from you that the essential con- 
dition to any treaty is that .you must pay money — 
you must pay a great deal of money. Please excuse 
me for a few moments. 

(He retires.) 
(The envois confer.) 

(Gerry indicating ho is opposing Marshall and Pinck- 
ney, as he remonstrates with them. They are obdurate.) 
(Re-enter Talleyrand.) 

John Marshall: Mr. Pinckney and I are agreed 
that the proposition you submit is totally inadmissible 
and it would be derogatory to the interests and th(i 
honor of the United States to permit ourselves to 
negotiate regarding any one of the propositions men- 
tioned. 

We could not deny the application of any of our 
President's utterances, which were predicated upon 
the facts. 



39 

We could not poimit any blame or censure to be, 
directly or indirectly, imputed to the United States, 
nor could we entertain any suggestions looking to the 
repudiation of existing treaties. 

Our country will not brook any restraint upon its 
lawful commerce, and we could not countenance any 
departure from the absolute recognition of the com- 
plete sovereignty and independency of the United 
States in matters of policy, commerce or Government. 

We could not consider paying the debts due by con- 
tract from France to our citizens for the violation of 
existing treaty. 

Mr. Pinckney and I are also decidedly of opinion 
that it is little short of an insult to our nation to talk 
of a loan to France, since this would be to violate onr 
treaty with England and would be next to an absolute 
surrender of the independence of the United States. 
In short, that you have demanded from us terms to 
which it is impossible for us to accede and which we 
hold are totally inadmissible. 

M. Talleyrand: The Directory are jealous of their 
honor and the honor of the nation; they demand the 
same treatment formerly accorded the Monarchy, and 
their honor must be maintained in the manner required 
unless, as envoys, you can substitute something per- 
haps more valuable. The Directory must look after 
France. 

John Marshall: And we must look after the 
United States. We came to adjust international dif- 
ferences, but, if your Directory prefer war, we will 
regret the unavoidable necessity of defending our- 
selves, which we have learned fairly well how to do. 



Af. Talleyrand: Have you no message to send to 
the Directory? They expect yon to offer money. What 
is your answer ? 

Mr. Pinckney: It is "No" (shouting); no not a 
sixpence ! 

John Marshall: Tell your Directory that, while we 
came here to conciliate, if possible, and hold the 
friendship of France, there is one object which is still 
dearer to ns than the friendship of Prance or any 
other country, and that is our national independence! 
That America has taken a neutral station — she had a 
right to take it; no nation has a right to force us out 
of it. That, to lend money to a belligerent power is 
to relinquish our neutrality and take part in the war. 
To lend this money under the lash and coercion of 
France w^ould be to relinquish our Government and 
ourselves, and to submit to a foreign government 
imposed on us by force. America is able to maintain 
her independence, and must deserve to lose it if she 
permitted it to be wrested from her. Mr. Pinckney 
and myself see no further reason to prolong the con- 
ference. 

Mr. Gerry: I am sorry, Monsieur 1' Talleyrand. I 
am most solicitous of preserving peace. 

M. Talleyrand: The Directory have a new decree 
they will issue regarding the commerce of the United 
States as soon as T advise them our negotiations are 
concluded. 

John Marshall: You can tell them they are at lib- 
erty to promulgate it, if its issuance is conditioned on 
the acceptance by the United States of the conditions 
named by the Minister of Foreign Affairs. 

M. Tattkyfand: You think, by returning and expos- 
ino' the unreasonableness of the demands of France to 



41 



your countrymen, you will unite them in their resist- 
ance to these demands, but in this you are mistaken. 
The diplomatic means France possesses in your coun- 
try are sufficient to enable her, through the French 
party in America, to throw the blame for our rupture 
on the Federalists, as you term yourselves, but on the 
British as France terms you, and you may assure 
yourselves that this will be done. You cannot rely 
upon England to help you. France can and will 
attend to England. We will invade her, break her and 
force her to sue for peace, and where, then, will you 
be? 

John Marshall: We will be across the sea, pre- 
pared to defend ourselves against all intruders; encir- 
cled by no dangerous powers, America neither fears 
nor is jealous of her enemies, and now we bid you 
good-day and request our passports. 

M. Tallfa'eand: They will be sent to your hotels. 
Good afternoon. 

(Exeunt.) 

ACT IV. 

Scene TI. 

BANQUET AT O'ELLER'S TAVERN, PHILADELPHIA, 
JUNE 18, 1798. 

"Millions for Defense, but Not a Cent for Tribute." 
(One hundred and twenty men are gathered around the banquet 
table, including the Speaker of the House of Representatives, the 
Cabinet members, Justices of Supreme Court, Speaker of Penn- 
sylvania Senate, field officers of the army. Bishops Carroll and 
White, and other distinguished citizens. 

John Marshall, the guest of honor, at the right of the toast- 
master. 

At the close of a hilarious banquet, the toastmaster raps for 
attention.) 

Toastmaster: My friends, we are gathered tonight 
to express to our distinguished guest of honor, our 



^ 



coiiiploto satisfaction with the manly manner in which 
iie represented his country as Special Envoy to France, 
and as a token of our affection for his person and 
our approbation of the patriotic firmness with which 
he sustained the dignity of our country during his 
important mission. 

We would, indeed, he remiss in our duty toward a 
most deserving citizen, who has so signally served 
our country, did we not make proper acknowledgement 
of our love and esteem on his return to us, after 
having so signally served us under such trying and 
delicate circumstances. 

Our citizens now know how Talleyrand tried his 
mettle, and was ^]i\d to i-etire from the conflict after 
crossing swords with John Marshall. Our people 
know that this patriotic V^irginian was the author of 
the brilliantly written diplomatic correspondence, 
henceforth to be kiiown to history as the "X-Y-Z let- 
ters.*' 

You have seen today how our citizens turned out 
to honor him. Floats of carriages filled w^th mem- 
bers of Congress, and prominent Americans, and hun- 
dreds of people on horseback and on foot went forth 
to meet him. Three corps of cavalry, in full uniform, 
led the procession which followed his carriage six- 
miles out of Philadelphia. You heard the church bells 
ring and cannon thunder, and witnessed the parade 
amid the shouts of our exulting multitudes, speaking 
the gratitude of their hearts for iho splendid manner 
in which he spoke for America. 

Twenty years ago, almost to a day, he was party 
to the parade that marched through our city streets, 
l)ut then he was a patriot soldier, following his Com- 
mander-in-chief, the great Washington, to drive the 



43 



Tories from oiir nation's capital, on the way to Mon- 
mouth from Valley P\)rge. 

You did not fight in vain, our gallant soldier of the 
Revolution, and we honor ourselves in meeting tonight 
to honor you ! 

T now propose the toast : ' ' The United States : May 
she always remain free, sovereign and independent!" 

(They drink.) 

A Soldier: I propose the toast: ''General Wash- 
ington: May his name stand as a rampart of defense 
against the assaults of our enemies, and a hulwark 
of protection of our country's peace!" 

(They drink.) 

AxoTHER Soldier: T pro})ose a toast to "The heroes 
who fell in the Revolutionary War: May their mem- 
ory never be dishonored by a surrender of the Free- 
dom purchased with their blood!" 

(They drink.) 
-. Young Baxquktkr: 1 propose tlie toast: "The gai- 
hmt youth of America: May they disdain to hold as 
tenants at will, the independence inherited from their 
ancestors!" 

(They drink.) 

Justice of Supreme (\3urt: I propose the senti- 
ment expressed by our distinguished guest, while 
standing for his country's honor in that foreign land, 
which will become one of the historic maxims of our 
-nation: "Millions for defense, but not a cent for 
tribute!" 

(They drink.) 
Speaker of House of Representatives : I would like 
to have you drink to the toast: ''The Constitution: 
Esto perpetua!" 

(They drink again.) 

(Cries of "Marshall, Marshall".) 



Toast Master: Gtiieral Ararshall, will you not 
honor us with a few remarks? 

John Marshall: Mr. Toast Master and my friends, 
j^ou overcome me with your generous and unmerited 
praise. T was honored sufficiently in being asked to 
represent my country on this foreign mission. It is a 
sutTicient reward to return to my country, my family 
and my friends. Any citizen who loved his country 
exclusively would have acted as my associates and I 
did, while on this mission. Any of you would have 
done as we did, and many would have done much bet- 
ter. 

We were asked to repudiate claims for our Govern- 
ment and its citizens, based upon a violation of their 
rights of property, that we knew were just ; to retract 
the utterances of our Chief Executive, that were based 
upon the facts, and to negotiate a loan to a belliger- 
ent power, in violation of our duty as a neutral 
nation. These were prescribed as the preliminary 
conditions precedent to the negotiation of any treaty. 
We did not feel that it was consistent with our coun- 
try's honor to negotiate upon any such terms. 

(Applause.) 

T am deeply grateful for the honor you have shown 
me. 

(Retirfs omid prolonged fipplause.) 

Toast Master: I propose the final toast to '^ Gen- 
eral Marshall : The man whom his country delights 
to honor"! 

(They all drink again.) _ 



45 



ACT V. 

Chief Justice. 

Scene I. 

TRIAL OF AARON BURR FOR TREASON, MAY 22, 1807, IN 
HALL, HOUSE OF DELEGATES, RICHMOND, VA. 

{George Hay, U. S. District Attorney, and William Wirt ap- 
peared for the Government, and John Wickham and Luther Mar- 
tin, with Aaron Burr, pro se, for defendant. 

Theodosia Burr Alston and her little son seated by her 
father. Many lawyers were within the Bar of the Court, and the 
Hall was crowded with spectators. 

Reporters for the press around a table inside the Bar.) 

George Hay: (Opened the argument for the Gov- 
ernment). Your Honor, that the Government has 
estabUshed beyond reasonable doubt, the charge of 
High Treason lodged against the defendant seems 
too clear for argument. 

Burr's cipher letter to General Wilkinson certainly 
proved that he was on his way to attack Mexico at 
the time his villiany was thwarted by the patriotic 
measures of the true-hearted Commander of the 
American Army. AVho can doubt, in the light of the 
facts presented, that Burr had intended to take New 
Orleans and make it the capital of his empire? Let 
us briefly examine the evidence, 

Wilkinson's affidavit demonstrated the defendant's 
intention 

The Chief Justice: That goes for nothing unless 
you have produced other evidence to prove the overt 
act. 

GEOE(iE Hay: (Continuing) We proved by Peter 
Taylor, Bloni]erl]as,sett's former gardenei-, and Jacob 



^ 



Allhrinlit, a laborer on liis island, that Mrs. Blenner- 
liassett had sent a letter to Colonel Burr in Kentucky, 
warning him not to return to the island, that Blenner- 
hassett, ^\■ho was also in Kentucky, confided to them 
that the}' were going to take Mexico and make Burr, 
King; that Burr, Blennerhassett and associates had 
bought eight hundred thousand acres of land and 
wanted young men to settle it. 

Allbright told how Mrs. Bleniierhassett conli<l('(i to 
him that Colonel Burr and her husl)an(l were goi un- 
to lay in provisions for an army for a year; that 
Blennerhassett had, himself, asked him to join the 
expedition which was going to settle a new country, 
and two men, whom Allbright had met in tlie woods, 
had told him they were Burr's men and were going 
to take a silver mine from the Spanish. 

He told how General Tupper laid his hands on 
Blennerhassett and said: "Your body is in my hands, 
in the name of the Commonwealth," and how seven 
or eight muskets were levelled at the Cleneral, and 
how General Tupi)er then changed his speech and 
wished them all "God speed." 

The Government has produced witnesses, who tes- 
tified under oath to these facts, and we submit that 
all these facts, in connection \vith the defendant's 
stealthy flight from justice, establish that he is guilty 
of High Treason. 

John Wtckham : (One of Burr's counsel, answered 
Hay). If the Court please, there has been no testi- 
mony produced to shoM^ an overt act of treason. Dur- 
ing all the time covered by the evidence pertaining 
to the events on Blennerhassett 's Island, the defend- 
ant, Colonel Burr, was in the State of Kentucky. 



47 



There is no such thing' as constructive treason. Under 
the Constitution of the United States, the alleged 
Mexican project was not only innocent, but merito- 
rious, for everybody knew that we were in an inter- 
mediate state between war and peace with Spain. 
President Jefferson's message to Congi-ess is now 
a part of the history of these events. If war did not 
break out, Colonel Burr's expedition was perfectly 
suitable to another and a wholly peaceful enterprise, 
to colonize his lands in Louisiana, which President 
Jefferson had, himself, recommended, when he ad- 
vised that we should have strong settlements beyond 
the Mississippi. 

The facts narrated by the witnesses and referred to 
by Mr. Hay are perfectly consistent with the lauda- 
ble intention of Colonel Burr to use his expedition 
to defend our country if war with Spain were de- 
clared, and, if not, to settle and colonize his Louis- 
iana lands, which had been recommended by the Presi- 
dent. 

Your Honor knows why the provisions concerniug 
treason were written into the American Constitution, 
— to protect the ])eople against that horrible and 
dangerous doctriiu' of constructive treason which 
had stained the English records with blood and 
filled the English valleys with innocent graves. The 
men who framed that instrument remembered the 
crimes that had been perpetrated under the pretense 
of justice, and, having risked their necks under the 
law, they feared despotism and arbitrary power more 
than they feared treason. 

A gentleman, both by birth and education, we find 
the Government, on evidence of the merest trifles, 



attempting' to convict the defendant of crimes whose 
baseness eonid ]> ' liarlK)i'((l oidy in the heart and 
mind of the vilest criminal. 

Does it stand to reason that a patriotic soldier of 
the Revolution, in his youth, — a man who enlisted to 
defend his country as a private and, through his 
meritorious service, liecame aide-de-camp to Gen- 
eral Putnam; who endured the hardships and priva- 
tions of Valley Forg-e, for love of his country, and 
distinguished himself by his bravery at Monmouth; 
a man who had later been selected by the State of 
New York to represent that commonwealth in the 
Senate of the United States, — is it logical to con- 
clude that such a man, in the evening of his life, 
would conspire to overthrow the Government of 
that country that, in his youth, he had risked his life 
to save? 

It is certainly not asking too nnich that such a cit- 
izen, when accused of a crime so foul, should receive 
the benefit of the doubt and should be tried accord- 
ing to the law of treason, established by the organic 
law he helped to frame, instead of the English law 
of constructive treason. 

Judged by that standard, the Government has 
wholly failed to establish the guilt of the defendant, 
and he should be discharged and allowed to return 
to the arms of his daughter, his beloved Theodosia. 

Cot.. Burr: May it please the Court: T arise not 
to remedy any omissions of my counsel, who have 
done great justice to the subject, but rather to make 
some observations of a personal nature. 

Treason, under our Constitution, has been judi- 
ciallv defined to mean "deeds"; yet T have been prose- 



49 

ciited on mere conjecture. In the language of the 
good Queen Hermione: 

■'My life, 1 prize it not a straw; 

But for mine honor (which I would free). 

If I shall be condemned upon surmise, 

All proofs sleeping else, but what mad jealousies awake, 

I tell you 'tis rigour, and not law." 

The whole countrv has been unjustly aroused 
against me. Wiikhison frightened the President, 
and Jefferson, in turn, alarmed the people. 

Have I acted like a guilty man? T voluntarily 
submitted myself to the jurisdiction of the criminal 
courts of Kentucky and Mississippi, and, after the 
fullest investigation of the facts, I was discharged. 

The people among whom I journeyed saw nothing 
hostile or treasonable in my expedition. And what 
about my alleged " flight ?" Only after I had been 
denied the protection of the law and vdien armed men, 
under illegal orders of an autocratic military author- 
ity, were seeking to seize me violently, acting upon 
the advice of my friends, did I abandon a country 
Avhere the law ceased to bo the sovereign power. 

Why did the guards, who brought me from Ala- 
bama to Richmond avoid every magistrate on the 
way? Why have I been refused the privilege of peii, 
ink and paper, and denied the right even to write 
to my daughter? I submit that this is persecution, 
not prosecution. 

It is true that, while being conducted by my mil- 
itary escort through South Carolina, I asked three 
civilians to see to it that I was delivered from this 
military despotism and demnnd'xl the interposition 
of the civil authorities. I asked to be subjected only 
to the laws of my country. Was that a criminal act? 

Under tho EiiQ-liRli ]nw of treason, the rule ob- 



50 

tain 0(1 that onougii lioads must be cut off to glut the 
v*iig-eaiico of tlio ('i-own. Shall this rule be estab- 
lished in this count I y, in the face of oui- Constitu- 
tion at the instance of a champion of the people's 
rights ? 

In Philatlclpiiia alone, after the British evacuation 
of that place, during the Revolution, hundreds were 
tried for treason, and, Ik iice, it is that the (quarrel- 
ing members of the Convention that framed our Con- 
stitution were in accoi'd upon this subject. 

I now crave the benefit of the benefic(»nt proxis- 
ion of onr (\)iistitution, not so much for the ])rot('C- 
tion or presei'vation of my own poor life, but thai 
my case may stand as a precedent to protect the in- 
nocent of futui-e ages from this vile charge, and to the 
end that the pages of American history will never be 
stained with prosecutions for tr(^ason, beoim witli- 
out cause, conducted without decency, and ending in 
iniquitous convictions, without the slightest feelin<>- 
of remorse. 

The Chief Jpsttce: The question to be decided is, 
whether or not the (lovernment lias produced evi- 
dence sufficient to justify holding the defendant upon 
the charge of treason. Proof, strong enough to con- 
vict, on a trial in chief, or even to convince the Judge, 
himself, hearing th(^ evidence, of the defendant's 
gTiilt, is not necessary to justify the Court in holding 
him for action by the Grand Jury, but there must 
be enough testimony to furnish good reason to be- 
lieve that Colonel Burr actually connnitted the crime 
with which he stands charged, l)efore he can be held. 

The common law text books lay do^Mi the rule 
that a prisoner can be discharged, on preliminary 
examination, only when it appears that the suspic- 



51 



ion against him was wholly groundless ; l)ut, of 
course, this does not mean that the hand of malignity 
may grasp any individual against whom hate may 
be directed, or whom it may capriciously seize, 
charge him with some secret crime, and put him on 
the proof of his innocence. 

Probable cause to suspect Colonel Burr guilty of 
an attempt to attack the Spanish possessions was 
perhaps shown by General Wilkinson's evidence, but 
that is all it does show, and the charge of treason 
is quite a different thing. 

As this is the most atrocious offense which can he 
committed against the political body, so it is the 
charge wdiich is most capable of being employed as 
the instrument of those malignant and vindictive pas- 
sions which may rage in the bosoms of contending 
parties struggling for ]Dower. 

Treason is the only crime specifically mentioned in 
the Constitution ; the definition of all others is left 
to Congress; but the Constitution, itself, carefully 
and plainly describes treason, and prescribes how it 
must be proved. Does the testimony show |)robable 
grounds for believing that the defen<laiit has com- 
mitted treason? 

The only evidence which points toward treason 
are the affidavits of Wilkinson and Eaton, and these, 
the Government contends, at least dt^monstrates the 
defendant's intent. But, if his overt "act did not 
o'ertake his bad intent, it must be buried, but as an 
intent that perished by the way". 

He is charged with having actually executed his 
vile purpose, not with having merely harbored a bad 
intent. 



These affidavits, thoreforo, go for nothing, unless 
there is other evidence to prove the overt act. 

'I'he aCiidavits of Eaton and Wilkinson constitute all 
the relevant evidence hearing on the charge of trea- 
son, and, although the whole transaction was exam- 
ined by the Supreme Court, in the habeas corpus case 
of Bollman and Swartout, holding that practically the 
same facts failed to constitute a prima facie case, 
upon the charge of treason, no new facts have been 
offered here. 

Where is the evidence that Colonel Burr assem- 
bled an army to levy war on the United States? Not 
before the Court, certainly. Mere suspicion cannot 
prevail in such a serious charge, when means of 
proving the suspected facts have not been secured. 

"VAHiere the truth can easily 1)e established if it ex- 
ists, and yet no proof of it is brought forward, sur- 
mise cannot take its place, for everybody must ad- 
mit that the ministers of justice, at least, cannot 
entertain unsupported conjectures or assertions. 

In this case, the fact to be estabhshed, as alleged, 
is an act of great public notoriety. It must exist in 
the view of the world, or it cannot exist at all. Months 
have passed since it is alleged the fact did occur, 
if it ever happened. More than five months have 
])assed since the Supreme Court declared the nec'^'S- 
sity of proving the fact, if it exists. Why is it not 
proved ? 

It is the duty of the Executive Department of our 
Government to prosecute crimes. Tt would be an 
easy matter for the Government to procure the evi- 
dence that defendant had assembled troops five months 
ago Certainly the Court cannot find that there has 
been anv remissness on the part of the Executive 



53 

Department, of the aoveiiimeiit, and, since no evi- 
dence has been presented that Colonel Burr assem- 
bled soldiers, the suspicion which, in the first instance, 
the Government created against him, ought not to 
be continued, uidess the want of proof can be in 
some manner accounted for according to the great, 
fundan^ental law of our country, which neither the 
Legislature nor the Courts can transcend. 

"Treason against the United States shall consist only in 
levying war against them, or in adhering to their enemies 
giving them aid and comfort." 

To constitute the crime for which the prisoner 
now ])cforc the Court is to answer, war must actually 
have been levied against the United States. To com- 
plete the crime of levying war against the United 
States, there must have been an actual assemblage 
of men for the purpose of executing a treasonable 
design. In the case now before the Court, a design 
to overthrow the Government of the United States 
in New Orleans by force would have been unques- 
tionably a design which, if carried into execution, 
would have been treason, and the assemblage of a 
body of men to carry it into execution would amount 
to levying war against the United States. 

The decisions heretofore made by the Courts of the 
United States have been in conformity mth these 
principles, and, .judged by these principles, we must 
hold that the charge of treason against Colonel Burr 
has not been established by the Government, and he 
must be discharged on this charge. 

Court will stand adjourned. 

(Wild excitement. Theodosia and Col. Burr's grand- 
child embrace him. His counsel congratulate him, and 
the spectators argue with each other and seemingly take 
sides.) 



^ 



ACT V. 

Scene II. 

Mcculloch vs. Maryland. 

(The Supreme Court Room in basement of Capitol at Wash- 
ington, D. C, February Term, 1819. 

A number of lawjers are seated in space before the bar of 
the Court, Daniel Webster, William Wirt and Wm. Pinckney be- 
ing seated at one table, and Joseph Hopkinson, Walter Jones and 
Luther Martin at another, with many spectators on the benches 
in the rear.) 

Bailiff: 'I'lie geiitlenit'ii of the bar will please 
stand: The Honorabk^ Supreme Court of the United 
States is about to convene. 

(Members of the bar stand. The Supreme Court Judges 
now enter the room, Chief Justice John Marshall leading, 
followed by Associate Justices Bushrod Washington, Wil- 
liam Johnson, Brockholst Livingston, Gabriel Duvall and 
Joseph Story, who stand while the Bailiff opens Court.) 

Bailiff : Oh yez ! Oh yez ! The Honorable Supreme 
Court of the United States is now in session for the 
transaction of business. 

Those having business with the Supreme Court will 
draw near and others will give respectful attention. 

God save the United States and this Honorable 
Court I 

(.Judges are seated, the Chief Justice in the middle.) 

Chief Justice : Uentlemen of the Bar, have you any 
formal motions? If not, we will proceed with the call 
of the docket. 

McCulloch V. State of Maryland et al. 

Webster and Pinckney for plaintiff in error; 

Hopkins, Jones and Martin for defendant. 

Are you ready to proceed, gentlemen? 

Mr. Webstek: We are. 

Chief Justice: Then proceed. 



55 

Daniel Webster: If the Court please: It is admit- 
ted by the parties iii this cause that, under the Act of 
Congress of April 10, 1800, the Bank of the United 
States was organized, and afterwards engaged in busi- 
ness in the City of Philadelphia, State of Pennsyl- 
vania. That, in pursuance of authority delegated by 
the president and directors of said bank, in the year 
1817, it established in the City of Baltimore, Mary- 
land, a branch of said bank of deposit and discount, 
which, until May 1, 1818, continued to carry on a gen- 
eral banking business. That, on February 2, 1818, 
the General Assembly of Maryland passed an act 

"To impose a tax on all bank?, or brancnes therro". in 
the State of Maryland, not chartered by the Legisl iture", 

providing for a graduated stamp tax on all notes 
issued by it, or, in lieu thereof, an annual license tax, 
in gross, of $15,000.00, in default of which the officers 
of the bank were made guilty of a misdemeanor and 
subjected to a fine. 

It is further admitted that James William Mc(^il- 
loch was the cashier of said branch of the Bank of the 
United States, and he did issue notes without paying 
said tax or stamping said notes, as a result of which, 
John Jones, the treasurer of the Western Shore, sued 
the defendant cashier to recover the penalties pro- 
vided by the Maryland law. 

It is also admitted that no authority to conduct the 
said branch bank in the State of Maryland was pro- 
cured, or attempted to be procured, from the State of 
Maryland, the plaintiff in error contending that no 
such authority was necessary, since the State of Mary- 
land has regularly adopted the Constitution of the 
United States and it is now one of the States of the 
Union. 



#66 

'I'lic iiiiiJU'diatt' ([lU'stioii is the constitutionality of 
the Maryland statute, but the basic issue is far 
broader tliaii this, it iiixolves the supremacy of the 
National Government against the domain of the State 
Grovei-iiniciits, and, lu iicc, the very existence of the 
Union. 

The reasoning- is not new to this Court that Con- 
gress, under the law, can pass all laws necessary and 
proper to carry out the powers conferred. 

Alexander Hamilton lias clearly demonstrated that, 
under this power. Congress had ample authority to 
charter a bank, and now, after thirty years of acqui- 
esence, it is too late to deny the power of the National 
Legislature to establish a bank. 

Assuming the law establishing the Bank of the 
United States to be constitutional, can Maryland or 
any other State tax a branch of that bank? If the 
states can tax the bank at all, they, or any one of 
them, can put it out of existence, since a power to tax 
involves a i)ower to destro3^ 

If this Act of Maryland shall be upheld by this 
Court, then Maryland, in taxing the bank, has, in 
effect, taxed the National Government, itself. 

The law makes this tribunal the final arbiter of 

questions arising between the states and the National 
Government. If the states may tax the bank, there 
is no limit but their own discretion, and the bank, 
therefore, must depend upon the discretion of the 
State Government for its existence. This conclusion 
is inevitable. This bank, therefore, chartered bj^ Con- 
gress, cannot exist if this law of Maryland shall be 
upheld. 



57 

One or the other of these laws must be siipreiiu', 
and a surrender of the power asserted by the National 
Government would be a giving up of those funda- 
mental and essential powers w^ithout which the Gov- 
ernuK nt could not be maintained. To hold otherwise, 
would be to declare that Congress can only exercise 
its constitutional powers subject to the controling dis- 
cretion and under the sufferance of the State Govern- 
ments. This doctrine would destroy the Union. 

The Constitution provided for the Union to pre- 
serve liberty, and, when we surrender the Union, we 
likewise gWo up our liberty and independence, which, 
God grant, may never occur with the concurrence of 
this tribunal, created by the Constitution to preserve 
these principles of a free government ! 

Jos. Hopktnson: The question of the constitutional 
power of CongTess to incorporate the Bank of the 
United States has, for years, divided the opinions 
of the first men of our land. Necessity was the plea 
advanced by General Hamilton for the first bank of 
the United States. If we grant that that necessity 
existed then, it dotF. not now. We now have banks, 
with vast credits, organized under state laws and so 
spread over the country as to meet the commercial 
needs of our people. Unless this federal bank was 
necessary, therefore, Congress had no power to au- 
thorize the organization of the bank. But, even if the 
incorporation of the bank were within the constitu- 
tional power of Congress, we deny that, as an incident 
of that power, it could authorize branch banks in dif- 
ferent states without their authority. 

The establishment of a bank in a state without re- 
gard to its interests, its policy or institutions, with 



# 



its \vi(l('-si)ivadiiig" braiiclii's spivadiiig overy^vliore, 
ami interfering" with and influencing the business of 
the different communities, is an encroachment upon 
the powers reserved to the states by the Constitution. 

But, if it be granted that it can thus enter a state 
unbidden, and whoi'o it is not invited, can it come tli(M-(» 
in a sovereign capacity, paramount to the sovereignty 
of the state, and with privileges and exemptions not 
possessed by the pi-operty or citizens of the state? 

Is it then exempt from taxation or regulation by 
the states, because it had the charter from tlie 
National Government '! 

The institution does not belong to the Government, 
but to private parties. Upon what basis, then, can 
they claim exem]ition for their property invested in 
this bank from the taxing powers of the states? 

Shall it be private in its direction and interests, 
public in its rights and pi'ivileges, a trading money- 
lender in its business, an uncontroled sovereig^n in its 
powers? Ts there anything in the Constitution to 
limit or control the rights of a state to tax the 
branches of this bank located in such states? 

If the Federal Government must have a bank, all 
collisions will be avoided by establishing the parent 
bank in its own district, where it holds an exclusive 
jurisdiction, and planting its branches in such states 
as shall assent to it, and using state banks where such 
assent cannot be ()l)tniin'(l. Tiiis conrsc would b.* con- 
sistent with the legitimate power of the Federal Gov- 
ernment, and also recognize the sovereign rights of 
the states. 

We submit that the judgment of the Maryland Court 
of Appeals was right and the decision should be 
affirmed. 



59 

ACT V. 

Scene III. 

(Court, officers, counsel and spectators seated same as in 
Scene II.) 

Chief Justice Marshall: (Reads the opinion of 
the Court) : 

"In the case now to be determined, the defendant, 
a sovereign state, denies the obligation of the law 
enacted by the Legislature of the Union; and the 
plaintiff, on his part, contests the validity of an act 
which has been passed by the Legislature of that 
State. The Constitution of our country, in its most 
interesting and vital part, is to be considered; the con- 
flicting powers of the Government of the Union and 
of its members, as marked in that Constitution, are to 
be discussed, and an opinion given, which may essen- 
tially influence the great operations of the Govern- 
ment. 

No tribunal can approach such a question without 
a deep sense of its importance and of the awful 
responsibility involved in its decision. 

But it must be decided peacefully, or remain a 
source of hostile legislation, perhaps of hostility of a 
still more serious nature, and, if it is to be so decided, 
by this tribunal alone can the decision be made. On 
the Supreme Court of the United States has the Con- 
stitution of our country devolved this important duty. 

The first question, then, in the cause, is, has Con- 
gress power to incorporate a bank? 

It has been truly said that this can scarcely be 
considered as an open question, entirely unprejudiced 
by the form of proceedings of the Nation respecting 
it. 



Tlio principle now con tested was introduced at a 
very early period of our history, has been recog- 
nized by many successive legislatures and has been 
acted upon ])y the Judicial Department, in cases of 

peculiar delicacy, as a law of undoubted obligation. 

******** 

Tn discussing this question, the counsel for the State 
of Maryland have deemed it of some im])ortance, in 
the construction of tln^ Constitution, to consider that 
instrument, not as einanating fr(un the people, but as 
the act of sovereign and independent states. The 
powers of the geneial (lovernment, it has been said, 
are delegated by the states, who, alone, are truly sov- 
ereign ; and must be exercised in subordination to the 
states, who, alone, possess supreme dominion. 

It would be di^ficnlt to sustain this proposition. The 
convention which framed the Constitution w^as, indeed, 
elected by the State Legislatures, but the iiustrument, 
when it came from their hands, was a mere proposal, 
w^ithout obligations or pretentions to it. Tt w^as re- 
ported to the then existing Congress of the United 
States with a request that it might ''be submitted to a 
convention of delegates chosen in each state by the 
people thereof under the recommendation of its T^egis- 
lature for their assent and ratification." 

This mode of pi-oceeding w^ns adopted; and, by the 
convention, by Congress, and by the State Legisla- 
tures, the instrument was submitted to the people. 
They acted upon it in the only mannei* in which they 
can act safely, elTectively and wisely on such a subject, 
by assembling in convention. Tt is true, they assem- 
bled in their several states, and wdiere else should 
they have assembled? No political dreamer was ever 



61 

w ikl enough to think of breakmg down the lines which 
separate the states and of compounding the American 
people into one common mass. But the measures they 
adopt do not, on thai account, cease to be the measures 
of the people, themselves, or become measures of the 
State Government. 

From these conventions, the Constitution derives 
its whole authority. The Government proceeds di- 
rectly from the people, is ordained and established in 
the name of the people, and is declared to be ordained 
"in order to form a more perfect Union, establish 
justice, insure domestic tranquility, and secure the 
blessings of liberty to themselves and their pos- 
terity". The assent of the states, in their sovereign 
capacity, is implied in calling a convention, and thus 
submitting that instrument to the people, but the peo- 
ple were at perfect liberty to accept or reject it; and 
their act was final. It required not the affirmance, 
and could not be negatived, by the State Government. 
The Constitution, when thus adopted, was of com- 
plete obligation and bound the state sovereignties. 

"If any one proposition could command the uni- 
versal assent of mankind, we might expect it to be 
this; that the Government of the Union, so limited in 
its powers, is supreme within its sphere of action. 
This would seem to result necessarily from its nature ; 
it is the Government of all; its powers are delegated 
by all; it represents all, and acts for all. Though any 
one state may be willing to control its operations, no 
state is willing to allow others to control them. The 
Nation, on those subjects on which it can act, must 



Tiecossarily bind its conipoiiont parts. But this ques- 
tion is not left to mere reason: The people have, hi 
express terms, de-cided it by saying: 

"This Constitution Lrcl the l:.\vs of the United States 
which shall be made in pursuance thei'eof shall be the 
supreme law of the land*, 

and by r(M|iiiriiii>- that the members of the State Legis- 
latures and the ollicers of the Executive and Judicial 
departments of the states shall take the oath of fidel- 
ity to it. 

The Government of the United States then, though 
limited in its powers, is SUPREME; and its laws, 
when made in pursuance of the Constitution, form the 
supi-eme law of th? land, 'Anything in the Constitution 
or laws of any stat^■ to the contrary notwithstanding \ 
******** 

It must have been the intention of those who gave 
these powers to insure as far as human prudence 
could insure their beneficial execution. Congress is 
authorized 'to make all laws which shall be necessary 
and proper for carrying into execution' the powers 
of the general Government. This provision is made 
in a Constitution intended to endure for ages to come, 
and, conse(iuently, to be adapted to the various crises 
of human affairs. 



The power of Congress to create and, of course, to 
continue the bank can no longer be considered as ques- 
tionable ; that the power of taxing it by the states may 
be exercised, so as to destroy it, is too obvious to be 
denied. But taxation is said to be an absolute power, 
and, like sovereign powers of otlier descriptions, is 
trusted to the discretion of those who use it; but the 



63 

very terms of this argument admit that the sover- 
eig-nty of the state, in the article of taxation, itself, 
is subordinate to, and may be controlled by, the Con- 
stitution of the United States. 

The people of a state give to their government a 
right of taxing themselves and their property, but the 
means employed by the Government of the Union have 
no such security, nor is the right of the state to tax 
them sustained by the same theory. They are given 
by all for the benefit of all, and, upon theory, should 
be subjected to that Government, only, which belongs 
to all. We find, then, on just theory, a total failure 
of this original right to tax the means employed by 
the Government of the Union for the execution of its 
powers. The right never existed, and the question 
whether it has been surrendered cannot arise. 

******** 

That the power to tax involves the power to de- 
stroy, that the power to destroy may defeat and 
render useless the power to create, that there is a 
plain repugnance in conferring on one government a 
power to control the constitutional measures of an- 
other, which other, with respect to those very meas- 
ures is declared to be supreme over that which exerts 
the control, are propositions not to be denied. 
******** 

The American people did not design to make their 
government dependent on the states. 

******** 

The Court has bestowed on this subject its most 
deliberate consideration. The result is a conviction 
that the states hav^ no power, by taxation or other- 



wise, to retard, impede, l)uideii, or in any mauTier 
coutrol the oi)erations of the constitutional laws en- 
acted by Congress to carry into execution the powers 
vested in the general Government. This is, we think, 
the unavoidable consequence of that supremacy which 
the Constitution has declared. We are unanimously 
of opinion that tho law passed by the Legislature of 
Maryland, imposing a tax on the Bank of the United 
States, is unconstitutional and void," 



65 



EPILOGUE. 



In days of old, a man of God, with power He gave, made sun 

and moon stand still! 
We've seen a man, in our own land, with wisdom from on high. 
Prevent a group of sovereign States 
From wrecking a Republic 
That God decreed should live! 
This was God's work and 
John Marshall was His instrument! 
Just as was Joshua, when he obeyed His will, 
And, with the Lord, fought for his chosen ones of Israel! 

With the same Courage from on high that enabled Daniel to calm 

the angry lions in their den. 
The great Chief Justice, all undaunted, faced the anger of the 

"Sovereign States", 
That were determined to dissolve the Union as soon as it was 

formed. 
With the calm, majestic power of the Law, which all the people 

had established, 
He stilled the wild dissension of the States, 
And, by God's Grace, upheld the power the people had decreed, 
Ard their full right to liberty and union in this land. 

We thank Thee, God of Nations, for this man, 

Whom Thou didat send to bear the light that cast no shadow, 

To show the way to found a Government to those who longed for 

liberty. 
But struggled in the dark, 

And did not know that it must come through Law! 
With the example of the few heroic deeds of this great man 
Though so imperfectly presented in this play, 
Grant us to return to the routine of our daily tasks in life, 
With an abiding faith in the institutions of the Fathers 
And a new determination to defend, against all men, the 
Constitution of our Country, 
Which was vitalized by the interpretations of our great Chief 

" Justice, 
John Marshall ! ! 



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